High Court dismisses judicial review where Board refused planning permission without exercising s.37(2) override power.

[2020] IEHC 290 THE HIGH COURT JUDICIAL REVIEW [2017 No. 246 JR] BETWEEN DONAL KENNY APPLICANT AND AN BORD PLEANÁLA RESPONDENT AND ROSCOMON COUNTY COUNCIL NOTICE PARTY JUDGMENT of Mr. Justice MacGrath delivered on the 12th day of March 2020

1. This is an application for an order of certiorari to quash the determination of the first named respondent, An Bord Pleanála (“the Board”), made on the 23rd January, 2017, whereby the Board refused planning permission for the construction of a district centre, a two story mixed use building, six apartments, two office suites and associated developments at Monksland, Athlone, County Roscommon. The application for permission was made on 24th June, 2016 and was refused by the local planning authority, the notice party, on 16th August, 2016. The applicant challenges the decision of the Board on the grounds that it is irrational and flies in the face of reason and common sense; and that the respondent acted unlawfully in arriving at its decision by failing to take into account and to have due regard for the provisions of s.37(2) of the Planning and Development Act 2000, as amended (“the Act”), particularly when requested to do so.

2. This is the applicant’s third application for planning permission for development of this site. While the previous applications also involved permission to construct a district centre, details varied somewhat from application to application.

Background

3. Mr. Kenny is the owner of a site on the outskirts of Athlone, County Roscommon. He purchased the site in 2011 when it was subject to a Local Area Plan (“LAP”) which zoned the lands for development as a district centre. He believed at that time that he would not have difficulty in obtaining planning permission and he states that he purchased the site on the basis that it was zoned for a district centre. A second reason why he purchased the site was because the Board had refused a district centre planning application which he had made in respect of a different site (“the Bogganfin site”) because, he states, it was deemed to be removed from population, even though that site was zoned for a district centre under the previous LAP.

The first planning application (the 2014 application)

4. In 2014 he made his first application for planning permission to construct a district centre on the site which the subject matter of the current application (Reference: PD/14/115).

This application was opposed primarily by the owners of local businesses. Roscommon County Council granted permission. The inspector recommended that the decision of the planning authority be overturned and permission be refused because “[h]aving regard to the Retail Strategy for County Roscommon 2014, the Board is not satisfied that the overall quantum of retail proposed is justified at this time considering the vacancy rates that currently exist within the Monksland area” and therefore he considered that the proposed development would not be in accordance with the proper planning and sustainable development of the area. The Board allowed an appeal and refused the application (Board Reference: PL 20.244373). At that time the subject site was zoned for a district centre use. The inspector noted that there were no specific objectives pertaining to this site. He commented in his report: -

“the mix of uses proposed which include for discount food store, offices, small retail units, medical suites and residential use are all considered to be acceptable uses within this zoning. In addition, the scale of the proposed centre is considered to accord with that normally found within such district centres. In principle, I therefore consider that the proposed development is in accordance with the district centre zoning objective for the site.”

The inspector also considered the Roscommon Retail Strategy, effective from May, 2014 and while he questioned the need for additional retail floor space at that location he did not believe, having regard to the scale of the proposed development, that in itself it would detract from the vitality of Athlone town centre. Nevertheless, he noted the multiple units that were vacant and widely accepted that the planning authority’s policy was to endorse development of that area, he considered that the further provision of significant retail floor space was not warranted at that time. He was not satisfied that the overall quantum of retail proposed was justified at that time considering the vacancy rates that then existed within the Monksland area.

The second planning application (the 2015 application)

5. Mr. Kenny states that in the light of this refusal, in 2015 he redesigned the proposed development and made a further application for planning permission (Reference:

PD/15/209). On this occasion the application was refused by the planning authority. The authority stated that notwithstanding the zoning objective of the site as a district centre and having regard to the Retail Strategy for County Roscommon, it considered that the overall quantum of retail development proposed would not be justified, in the absence of demonstrable demand for such facilities linked to significant growth in population or demonstrable level of under provision of such uses, at that time. Further, it was not satisfied, based on the submissions received, that the quantum of retail use proposed would not have a detrimental impact on the viability and vitality of Athlone town centre and it considered that the proposed development would be contrary to the retail planning guidelines issued by the Minister. A second reason concerned the visual impact of one of the blocks. Mr. Kenny appealed and the Board once again refused the application (Board Reference: PL 20.245569). The appeal was accompanied by a copy of the retail impact statement submitted with the application to the planning authority. Again, the Board considered that the overall quantum of retail proposed would not be justified at that time considering the vacancy rates that currently existed within the Monksland area and that the proposed development would have a negative impact on the vitality and viability of Athlone town centre. One of the grounds of appeal that had been advanced by the applicant was that the retail strategy of 2014 was out of date, that the majority of the vacant retail floor space in the area was retail warehousing unsuitable for a district centre and was unlikely to be implemented. It was also submitted on his behalf that on the previous application, the inspector had agreed that the development would not negatively impact on Athlone Town Centre and that the decision to refuse permission by the local authority was based on the Board’s previous decision rather than on a demonstrated impact on Athlone. It was also argued that the Board’s previous decision was based on the incorrect assumption that there were significant vacancies, again he reiterated that the vacancies were in retail warehousing and could not accommodate a district centre facility.

6. When that appeal’s process was being undertaken, a new draft LAP was published. This was referred to in the report of the inspector who recorded that the preferred option expressed in the draft LAP was for the consolidation of commercial development into a single district centre, as opposed to 3 separate centres zoned in the current LAP and inspector also noted that the applicant site was proposed to be rezoned for new residential development. Noting the proposed rezoning of the subject site, the inspector stated that one could conclude that the planning authority considered the single River Village district centre to be sufficient to fulfil the retail policy provisions of the development plan and the County Retail Strategy. He commented that “other than the zoning of the subject site, I can find no evidence that there is further or widespread policy support for the creation of the second district centre in Monksland”. He also observed that the County retail strategy addressed the suitability/unsuitability of existing vacant units not suitable for conversion to convenience retailing. The inspector considered that there had been no change in circumstances that would warrant a reversal of the previous

decision of the Board to refuse planning permission for the district centre. The proposed development was not in accordance with the proper planning and sustainable development of the area. Again, the reason for the refusal was primarily that was considered that the overall quantum of retail proposed would not be justified at that time considering the vacancy rates that currently exist in the Monksland area. The proposed development would be contrary to the “Retail Planning Guidelines for Planning Authorities”. A second reason related to the dominance of the surface car parking and road layout and the absence of usable public open space, it was considered that the development would present a poor public realm and would not provide adequate amenity to future residents. It would therefore seriously injure the visual amenities of the area and the residential amenities of future occupants of the development and would be contrary to the proper planning and sustainable development of the area.

7. Mr. Kenny makes complaint of being prohibited from responding to new information, that the draft plan was presented after the time limit for submissions and he states that the “concepts of the proposals therein, created the circumstances of a misdirection of that appeal (PL 20.24 5569)”.While not happy with that decision, he decided that the most efficient manner in which to proceed was to reapply and to highlight discrepancies arising from the objections in respect of that second application, particularly those stated to be concerned with vacancies of properties described as being suitable for convenience use. The third planning application (the 2016 application)

8. This now brings me to the planning application, the refusal of permission for which is the subject of the challenge in these proceedings. Mr. Kenny applied for planning permission on 24th June, 2016, for the construction of a district centre, a mixed use building, apartments and two office suites together with associated developments. It is proposed to construct two buildings, known as Block A and Block B. Block A is to accommodate a discount food store, with block B being a two-storey structure accommodating five retail outlets, a consulting room, a therapy suite and services at ground floor level, together with six apartments and two office units at first-floor level. Surface car parking was to be provided with an open green landscaped area at one section of the site. The development includes the construction of a link road from an existing public road which would provide vehicular access to the site. A separate pedestrian entrance is to be provided at another part of the site.

9. The local authority refused the application. Mr. Kenny appealed to the Board and on the 23rd January, 2017 they refused the appeal. The application to the Local Authority bears the reference PD/16/266 and the appeal to the Board, reference PL 20.247243.

The Planning Authority’s Reasons for refusal

10. The Local Authority, in its decision of the 16th August, 2016, refused the application.

Three reasons were provided. The first related to zoning. It was considered that the overall quantum of proposed retail and commercial floor space would result in a material contravention of the primary zoning objective of the lands as set out in the LAP. It would militate against the achievement of the development strategy as set out in the plan, which includes the establishment of a “central” focus for the LAP area by consolidating commercial development around a single, centrally located district centre, and would therefore be contrary to the proper planning and sustainable development of the area.

11. The second reason advanced was that, having regard to the Retail Strategy for County Roscommon (which is incorporated into the Roscommon County Development Plan 2014- 2020), it was considered that the overall quantum of retail proposed “would not be justified at this time … considering the vacancy rates that currently exist within the Monksland area.” It was stated that the development would have a negative impact on the vitality and viability of Athlone town centre. It was considered that the proposed development would be contrary to the Retail Planning Guidelines for Planning Authorities issued by the Department of the Environment, Community and Local Government in April, 2012 contrary to the proper planning and sustainable development of the area.

12. Finally, the notice party decided that having regard to the overall visual impact of the building unit, in particular the portion known as Block A, and considering that this element of the proposal did not sufficiently provide overall design solutions which mitigate the “massing of the unit”, it was not satisfied, based on submissions received, that the proposed development “would not present the high quality presentation to the public realm which the site required, nor to provide adequate amenity to future residents”. It was therefore considered that the development would seriously injure the visual amenities of the area and residential amenities of future occupants and would be contrary to the proper planning and sustainable development of the area.

The Appeal to the Board

13. Mr. Kenny appealed this refusal on a number of grounds. The principle grounds of appeal were that the decision was founded on what he contends is a sequence of misjudgements and anomalies originating from the Board’s decision to overturn the permission granted by the Planning Authority in 2015. He placed particular emphasis on the LAP. The new plan had relocated, by a distance of thirty metres, and increased the high density district centre development zoning, from the four-acre subject site, to other lands adjacent to the north side of a new road, thus increasing the district centre development lands to sixteen acres. He submitted that this was in total conflict with the reasons for the refusal. Such inconsistency was evident from the new 2016 – 2022 LAP. The strategy proposes to consolidate a district centre but the new extended district centre zoning is on lands with no planning history and also on the north side of the new Tuam Road. A further ground of appeal was that the zone change had the effect of undermining the most pivotal site/location in the area and inhibiting the development of residential land. He also observed that insofar as application 15/209 was concerned, this was refused on appeal, during the course of which it materialised the planning authority produced a new draft LAP, which information was released outside the time limit for submissions to the Board to which he could not respond.

14. Mr. Kenny also requested the Board to exercise its discretion under s.37(2)(a) of the Act to accede to a grant under s. 37(2)(b)(ii), (iii) and (iv), the provisions of which he outlined. He stated that: -

“The circumstances prevail that the application was validated under the 2010-2016 LAP, the site forms part of the core policy/objectives of that LAP, and is (sic) must be considered that the new plan has steered away from values that set the foundation of forward planning policy.”

He addressed what he considered to be inconsistencies in policy and stated that it may be considered that his pivotal site was unduly impacted by the rezoning factors. Relocating of zoning from what was described as a progressive site, to a location 30 meters away on adjacent lands, with no history of planning, could be considered extreme and “substantive evidence would be required to be furnished to justify such a motion.” He submitted that it can be shown that the evidence for such zoning relocation conflicted with the objectives of the development plan. He also submitted that the new LAP may require revision for a number of reasons including the failure to give due consideration to submissions made by a number of residents of the area. There had been an increase in population also. This was an extremely lengthy and detailed submission and indeed echoes many of the arguments that were advanced during the hearing of this application.

The Reasons for the Board’s Refusal

15. The reasons for the respondent’s refusal are as follows: -

(1) “It is a strategic aim of the Monksland/Bellanamullia (Athlone West) Local Area Plan 2016 - 2022 to support the consolidation of commercial activity within the Local Area Plan area around a District centre, which is located to the south-east of and not contiguous with, the application site. In addition, the land use zoning objective for the application site is ‘New Residential’ as indicated on Map 13 of the LAP. Both the strategic aim and the land use zoning objective are considered reasonable.

Having regard to the quantum of retail and commercial use proposed (including a discount food store/supermarket of stated area of circa 1,518 square metres, which is not normally permitted on lands zoned ‘New Residential’) and also having regard to the limited number of residential units being proposed, six number apartments, it is considered that the proposed development would conflict with the abovementioned strategic aim of the Local Area Plan and would materially contravene the land use zoning objective for the site. The proposed development would, therefore, be contrary to the proper planning and sustainable development of the area.

(2) Having regard to the Retail Strategy for County Roscommon 2014, and the land use zoning objective for the site, as indicated in the Monksland/Bellanamullia (Athlone West) Local Area Plan 2016 – 2022 it is considered that the overall quantum of retail proposed would not be justified at this time, or at this location, considering the vacancy rates that currently exist within the Monksland area. In addition, having regard to the level of permitted retail floor space in this area that is not currently operational, as set out in the retail strategy, it is considered that the quantum of retail use proposed would have a detrimental impact on the vitality and viability of Athlone Town Centre. It is considered that the proposed development, would, therefore, be contrary [to] the “Retail Planning Guidelines for Planning Authorities” issued by the Department of the Environment, Community and Local Government in April, 2012 and to the proper planning and sustainable development of the area.”

16. A third reason advanced concerned the absence of useable public open space - that the development would not provide adequate amenity to future residents and seriously injure the visual amenities of the area and the residential amenities of future occupants of the development.

The Planning and Development Act 2000, as amended (“the Act”)

17. Certain provisions of the Act, and the interaction between them, were central to the applicant’s challenge and the respondent’s response.

(a) Section 34

18. Section 34 of the Act imposes an obligation on the planning authority, or the Board, to have regard to certain matters when performing relevant functions under the Act. This is particularly evident in the context of decisions on planning applications. The section is contained in Chapter IV Part III of the Act, which is entitled “Control of Development” and is framed in broadly negative terms by imposing a restriction on a planning authority as to what it may consider when making a decision on a planning application. Section 34 (2)(a) provides: –

“(a) When making its decision in relation to an application under this section, the Planning Authority shall be restricted to considering the proper planning and sustainable development of the area, regard being had to¬¬

(1) the provisions of the development plan,

(ia) any guidelines issued by the Minister under section 28,

(ii) the provisions of any special amenity area order relating to the area,

(iii) any European site or other area prescribed for the purposes of section 10(2)(c),

(iv) where relevant, the policy of the Government, the Minister or any other Minister of the Government,

(v) the matters referred to in subsection (4),

(va) previous developments by the applicant which have not been satisfactorily completed,

(vb) previous convictions against the applicant for non-compliance with this Act, the Building Control Act 2007 or the Fire Services Act 1981, and

(vi) any other relevant provision or requirement of this Act, and any regulations made there under.”

(b) Section 18

19. Section 18 of the Act provides that a planning authority may prepare a LAP for any particular area within its functional area and for a particular specified period. Section 18(4)(b) provides: -

“(b) A local area plan may remain in force in accordance with paragraph (a)

notwithstanding the variation of a development plan or the making of a new development plan affecting the area to which the local area plan relates except that, where any provision of a local area plan conflicts with the provisions of the development plan as varied or the new development plan, the provision of the local area plan shall cease to have any effect.”

Section 18(3)(a) provides that when considering an application for permission under s.34, a planning authority, or on appeal, the Board: -

“…shall have regard to the provisions of any local area plan prepared for the area to which the application relates, and the authority or the Board may also consider any relevant draft local plan which has been prepared but not yet made in accordance with section 20.”

(c) Section 37

20. Section 37 of the Act empower of the Board to grant permission in circumstances where the planning authority has refused permission on the grounds that the proposed development materially contravenes the relevant development plan. Section 37(2)

provides: -

“(2)(a) Subject to paragraph (b), the Board may in determining an appeal under this section decide to grant a permission even if the proposed development contravenes materially the development plan relating to the area of the planning authority to whose decision the appeal relates.

(b) Where a planning authority has decided to refuse permission on the grounds that a proposed development materially contravenes the development plan, the Board may only grant permission in accordance with paragraph (a) where it considers that—

(i) the proposed development is of strategic or national importance,

(ii) there are conflicting objectives in the development plan or the objectives are not clearly stated, insofar as the proposed development is concerned, or

(iii) permission for the proposed development should be granted having regard to [regional spatial and economic strategy] for the area, guidelines under section 28, policy directives under section 29, the statutory obligations of any local authority in the area, and any relevant policy of the Government, the Minister or any Minister of the Government, or

(iv) permission for the proposed development should be granted having regard to the pattern of development, and permissions granted, in the area since the making of the development plan.

(c) Where the Board grants a permission in accordance with paragraph (b), the Board shall, in addition to the requirements of section 34 (10), indicate in its decision the main reasons and considerations for contravening materially the development plan.”

Plans and Guidelines

21. It is clear from the provisions of s. 34 of the Act that the provisions of development plan referred to therein may impact upon a decision to either grant or refuse an application for planning permissions. The policy or policies of any Government Minister must also be taken into account. These include guidelines. Such plans and guidelines contain, inter alia, statements of strategic aims, policies and other matters to which a planning authority must have regard when deciding on an application for planning permission.

22. Development plans are required by the Act to set out the overall strategy for the proper planning and sustainable development of an area; sustainability meaning that the longer term effects of the development and how it impacts on people and the environment in general, locally and in the broader context, both currently and into the future. A development plan is required to contain mandatory development objectives, including the zoning of land (in LAPs), the provision of infrastructure and the preservation of landscape character.

23. LAPs which are prepared in accordance with s.18 of the Act, are required to be consistent with the objectives of the development plan and must consist of a written statement and plan(s) indicating the objectives in such detail as may be determined by the planning authority for the proper planning and sustainable development of the area.

24. Section 20 of the Act makes provision for consultation and the method for the adoption of an LAP.

No Challenge to the Local Area Plan

25. The function of making development plans and LAP’s is that of planning authorities and not of the Board. On 25th July, 2016, at a time between the date of making the application and the decision of the local authority, a new Monksland/Bellanamullia LAP 2016-2022 was adopted by the elected representatives of Roscommon County Council.

This replaced an earlier plan for the period 2010-2016. The 2016-2022 LAP has not been challenged. This has been emphasised by the respondent who maintain, inter alia, that many of the applicant’s complaints stem from dissatisfaction with the LAP.

Relevant Plans and Guidelines

26. In this case, the relevant plans and guidelines include:

(1) The Roscommon County Development Plan 2014-2020. The development plan confirms that the planning objectives are influenced by planning policies contained within the plan. It is also confirmed that the plan reflects the county council’s statement of the principles it will use in making decisions and development and on its plan of action to ensure that the proper planning and sustainable development of the county is realised.

(2) Monksland/Bellanamullia, the townland in which the applicant’s site is situated, is west of Athlone. Under the LAP 2016-2022, the zoning for the applicant’s lands changed from “district central development” to “new residential”. It should also be mentioned that a draft of this plan was prepared in 2015, when Mr. Kenny’s 2015 application was under appeal.

(3) The Retail Planning Guidelines for Planning Authorities (“the Retail Guidelines”).

Guidelines were issued by the Department of the Environment Community and Local Government in April, 2012. These guidelines require local authorities to prepare a retail strategy and make provision for policies for retail development in development plans. In this regard, in the context of the County Roscommon Development Plan, a retail strategy for County Roscommon was introduced in May 2014. It is stated therein that the purpose of the retail strategy is to implement the objectives of the retail planning guidelines and that a key responsibility of the planning system is to support retail development and encourage a healthy retailing competitiveness in accordance with proper planning and sustainable development;

(4) The court has also been referred to the report Athlone Boundary Review Committee (“the Committee”).

27. Given the detail of arguments in relation to the contents and applicability of these various plans and guidelines, it is appropriate that they should be addressed before considering the Inspector’s report.

The County Development Plan

28. In Attorney General (McGarry) v. Sligo County Council [1999] 1 I.R. 99, McCarthy J.

described a development plan as forming “an environmental contract between the planning authority… and the community.”

29. The County Roscommon development plan, insofar as it is relevant to the area of the applicant’s lands, was opened to the court. The plan was formulated following a statutory based consultative process involving the council executive, elected members and the public together with inputs from government departments and statutory consultees. The plan is described at p.7 as an amalgam of influences including the National Spatial Strategy, the Regional Planning Guidelines, along with local planning input and public, including elected member, contribution. The plan outlines the core strategy for the county for the period 2014 to 2020. The Planning and Development (Amendment) Act 2010, s. 7, requires planning authorities to include within their development plans core strategy. The core strategy must include, inter alia, retail objectives-retail strategy and by virtue of the provisions of that section, the core strategy must provide relevant information to show that, in setting out objectives regarding retail development contained in the development plan, the planning authority has had regard to any guidelines relating to retail development issued by the Minister under s. 28.

30. Retail strategies are considered at chapter 3.3 and at 3.3.1. It is stated that certain areas including Monksland had been subject to substantial retail and retail warehousing development. The council’s view is recorded that the uncontrolled proliferation of retail and retail warehousing in these areas is unsustainable and undermines the proper development of the town centres of their parent settlements. In that context it was envisaged that certain environs, including Monksland, would develop the retail functions of a local neighbourhood/district centre. The plan also re-recognised that the council sought to promote Monksland district centre as a secondary centre for new retail development. At para. 3.3.2, the plan deals with projected retail floorspace requirements and noted that for convenience and comparison floor space, the figures for future floor space capacity aligned closely with the figures of vacant and extant retail floorspace.

Thus, the plan stated that the findings indicated that the development and uptake of the vacant and extant floorspace were likely to meet floorspace capacity projections over the life of the County development plan. Therefore, retail strategy encouraged that all new retail proposals should seek to avail of those vacant units. The statistics provided in the plan would appear to relate to those as were available in 2013, prior to the adoption of the plan. At para. 3.3.3, which concerns the location of future retail development, it was noted that there were prospects for growth in Monksland and that this will be facilitated within designated neighbourhood/district centres where it is required to serve the needs of local communities and where it has been demonstrated that such development would not undermine the viability and vitality of retailing in the town centres of their parent settlements. The council encouraged the expansion of the convenience retail offer within all town centres in the county. A number of retail planning policies were outlined which included policy 3.18, to encourage and facilitate the reuse and regeneration of derelict and vacant buildings for retail uses in town centres with due regard to a sequential approach. Policy 3.13 is also recorded, being to implement the principle established by the Retail Planning Guidelines and the companion Retail Design Manual document, as the primary basis for the control of future retail development.

31. These are just some of the extracts that were opened to the court.

The Local Area Plan (“LAP”)

32. The LAP was prepared in accordance with ss.18 to 20 of the Act. At para 3.1.7, under the heading “Economic Development and Employment”, it recognised that the ongoing development of a district centre, capable of serving local retailing, recreational and social needs as being viewed as a priority in the area. It also recorded, in the context of the provision of retail and retail warehousing space, that the Retail Strategy which forms part of the County Development Plan 2014-2020, indicated that 3621m² of retail space granted January 2007–2013 remains vacant or extant. The most recent survey in June, 2015 conducted by the County Council as part of the preparation for the LAP indicated that this was modest in terms of land zoned in the area. It noted that 1355m² of developed commercial space on district centre land was vacant and 204m² of developed commercial space on LC lands were vacant. Other figures were given in respect of business and enterprise lands. The plan also addressed lands zoned as district centre to the north of the new Tuam road. Under the heading “Vision and Development Strategy”, a number of strategic aims for the Monksland/Bellanamullia LAP area were outlined including support for the consolidation of commercial activity within the LAP around the district centre; and a further aim being to positively impact on the well-being of the LAP area by ensuring the redevelopment and reuse of vacant and derelict residential, commercial and industrial buildings and promoting the renewal and environmental improvement of neglected areas.

33. The preferred development strategy for the area is also addressed in some detail and emphasis is placed on the consolidation of commercial development into a single district centre which should be purpose designed and built in accordance with guidance provided in a Framework Plan for the overall landholding. A particular development strategy, consolidating development within Monksland centred around the district centre was to be preferred. Lands zoned “New Residential”, would comprise Greenfield sites, the majority of which fall within 750 meters of the district centre surrounding the Supervalu store. The policies for retail and commercial development are also outlined in the plan which included, at policy number 87, the implementation of the findings and recommendations of the retail strategy for County Roscommon and the assessment of all retail proposals against the criteria and recommendations set out in the Retail Planning Guidelines and the Retail Strategy for County Roscommon 2014 to 2020.

34. In the light of these provisions, Mr. Collins B.L. poses the question - how could any district centre not affect the town centre?

Retail Strategy for County Roscommon

35. The Retail Planning Guidelines for Planning Authorities, issued by the Department of Environment, Community and Local Government in April, 2012, requires local authorities to prepare a retail strategy and provide policies for retail development in a development plan. The stated purpose of the retail strategy is to implement the objectives of the Retail Planning Guidelines. The Retail Strategy for County Roscommon, which is effective from 12th May, 2014, addresses particular areas in the County, including the Monksland/Bellanamullia area. In terms of convenience, it noted that the area was primarily served by a large Supervalu store which is the anchor retail tenant in the River Village district centre development and while other retail services in the area were limited, it was considered that Supervalu adequately serves the current residential catchment. A key action required for the area, is stated to be to ensure that as the area continues to expand, the retail provision, while meeting the need of Monksland/Bellanamullia, does not adversely impact on the primary retailing centre of Athlone Town. At p. 17 of the document it states: -

“New retail development must comprise of retail units of the size and nature that would not compete directly with Athlone Town Centre. The development of Monksland may facilitate further non-retail services, such as branch of a bank or credit union, restaurants, pharmacies, takeaway, video/DVD rental, public house, and dental/medical surgery, however the provision of further comparison and convenience floorspace must be carefully considered. Where deemed necessary, Roscommon County Council will seek Retail Impact Assessments to demonstrate the potential impact of a proposed development on the retailing sector of Athlone Town.

Given the variety and scale of existing vacant retail units available in Monksland, strict controls on facilitating new retail developments are required. Prospective developers of such units shall be required to demonstrate that no existing units of the nature proposed are not already available or easily adaptable.

Securing occupancy of these substantial vacant units is a challenge and it is likely that the Planning Authority will have to consider permitting alternative uses of these buildings for other commercial uses, providing they are compatible with the sustainable development of the surrounding area.”

Summarising the key actions required, the retail strategy document should: - i. Ensure retail proposals do not undermine or adversely impact upon the key function of Athlone town to serve as a primary regional retailing centre.

ii. Apply strict controls on new build proposals for retail developments, where vacant premises which could readily serve the proposal are already built. Retail strategy and policy guidance is further considered in chapter 4 and once again it is stated that further retail development in the centres of Monksland, inter alia, should be assessed having regard to the potential impact on the adjacent primary retailing centre of Athlone: -

“The focus of providing new retail floorspace within the primary towns of the County will help to strengthen the town centres and clearly establish their primacy in terms of retailing roles and functions. This ‘town centre first’ approach underpins the main objectives of the retail planning guidelines.”

A para. 4.5.3 it is again stated that the district centres should not serve as retail destinations in their own right sufficient to adversely impact on the town centre to which they are subservient, and that the need for additional retail development in a district centre to serve future population growth offer any significant extension to an existing district centre should be carefully examined in the development plan for the area.

Justification for additional retailing provisions in district centres would be based on a significant growth in the population or on a demonstrable level of under provision of retailing or other services to meet the regular convenience and lower order comparison shopping needs of new communities as provided for and quantified by the relevant core strategy.

The Athlone Boundary Review Committee Report

36. The Committee was established on 19th June, 2015 by the Minister for the Environment, Community and Local Government, under s.28 of the Local Government Act, 1991. It was tasked with reviewing the boundary between County Westmeath and County Roscommon and to make recommendations with regard to the municipal district of Athlone which were considered necessary in the interests of effective and convenient local government. When carrying out its work, the committee engaged in a consultative process involving the respective local authorities. It also considered in excess of 27,000 submissions from the public and interested parties. In passing, it should be noted that the Committee recommended that no change should take place to the existing boundary but that a new programme of structured cooperation be put in place immediately by both local authorities to develop what was described as an innovative governance system for the Athlone-Monksland/Bellanamullia area. The focus of the report was to a large extent on the development of a joint strategy for this area.

The role of the District Centre

37. The Retail Guidelines state that the role of a district centre is to provide a range of retail and nonretail service functions (e.g. banks, post office, local offices, restaurants, public houses, community and cultural facilities) for the community at a level consistent with the function of that centre in the core strategy. It should not serve as a retail destination in its own right, sufficient to adversely impact on the city/town centres to which they are subservient. They may, however, be purpose built in new or expanding suburbs, or in traditional district centres in large cities or towns.

The Inspector’s Report

38. In arriving at its conclusions, the Board took into account the submissions which it received and a report prepared by Mr. Tom Rabbette, a senior planning inspector (“the inspector’s report”). These were considered at a Board meeting held on 19th January, 2017. The inspector recommended refusal for reasons which were effectively adopted by the Board.

39. Mr. Rabbette carried out a site inspection on the 19thNovember, 2016. He states that in arriving at his conclusions he took into account the grounds of appeal, the Planning Authority decision, the Planning Authority reports, the planning history of the site and the observations of several listed businesses in the River Village district centre in Monksland, who supported the Planning Authority’s decision to refuse permission. The observations included reference to previous refusals, the quantum of district centre floor space which it was stated was 7.7% larger than the earlier refused scheme, that a retail impact assessment had not been submitted and that the plan contravened the new residential zoning of the LAP. Other observations, as recorded by the inspector, were that the application involved the reproduction of the scheme that had repeatedly been refused, that the application failed to acknowledge the potential impact on Athlone town centre and that the retail and residential environment of Monksland had not changed considerably since previous refusals. Other objections considered included that the adjacent convenience store adequately served the residential catchment and that the development was excessive given the scale of existing vacancies in retail units/land in Monksland.

40. The inspector considered the previous applications and attached the history files in respect of those applications. These included the planning applications in 2014 and 2015 to which reference has already been made; and a further earlier application made by a different applicant in 2006 (Planning authority reference: 06/2373, Board reference: PL 20.229054) when the Board overturned a decision to grant permission for a mixed use development.

41. Mr. Rabbette also considered the application in a policy context and outlined his assessment which included reference to provisions of the County Development Plan 2014- 2020, the Retail Strategy for County Roscommon May, 2014, and the Monksland/Bellanamullia (Athlone West) LAP 2016- 2022.

42. He observed that the area where the application site is located is identified as a “Tier 2- Key Support Town/Settlement” in the settlement strategy of the development plan.

Section 2.4.1 of the development plan addresses retail issues including the county retail strategy and the retail planning guidelines. He acknowledged that retail facilitate on is envisaged for Monksland/Bellanamullia within the context of a district centre for that area. Section 3.3.1 of the development plan addressed centres of retail development in the county and provided that: -

“the council views the uncontrolled proliferation of retail and of retail warehousing in these areas (Monksland and Cortober) as unsustainable and ultimately undermining the proper development of the town centres of their parent settlements. In this context it is envisaged that Cortober and Monksland develop the retail functions of local neighbourhood/District centre”.

43. Section 3.3.3, of the development plan, addresses the location of future retail development. It was also referred to by the inspector and it states: -

“There are prospects for growth in the neighbourhood/district centres of Cortober and Monksland respectively. This will be facilitated within the designated neighbourhood/district centres where it is required to serve the needs of local communities and where it has been demonstrated that such development will not undermine the viability and vitality of retailing in the town centres of their parent settlements.”

44. With regard to the Retail Strategy for County Roscommon, the contents of chapter 2 of the development plan were considered. Chapter 2 is concerned with the assessment of retail centres in Roscommon, and an assessment of Monksland/Bellanamullia. The inspector noted that the retail strategy recognised that further retail development at Monksland could have potential impacts on Athlone Town Centre and thus should be carefully assessed.

45. He considered the LAP, 2016 - 2022 in which the site was zoned “New Residential” and referred to and attached by way of appendix, the policies and objectives relating to retail and commercial developments outlined in the LAP.

46. The inspector also recorded the observations of the River Village Traders that the proposed development was in contravention of the objective of the LAP which unequivocally stated that supermarkets were not normally permitted on land zoned new residential. He also recorded that the applicant had delved into the history of the planning applications on the site in an attempt to explain why district centre zoning should still apply.

47. Mr. Rabbette opined that the main issues which arose were the planning history, LAP compliance, retail impact, site layout and appropriate assessment. Referring in detail to previous planning applications, he observed that the land use zoning objective for the site had recently been changed. He categorized the applicant’s grievance as lying, in many respects, with the reserved function of the planning authority in relation to re-zoning and that such recent re-zoning came about as a result of the previous refusals. Mr. Rabbette addressed this issue as follows: -

“The applicant has submitted, inter alia, an argument as to why the commercial zoning should have been retained on the subject lands. The elected members of the authority have exercised their right to adopt the land use zoning objective for the lands as they saw fit. How they came to that decision is now, arguably somewhat academic. The adoption of a statutory plan for the area is subject to public participation, it appears the applicant did exercise his right to engage in that process, however, it appears he is dissatisfied with the outcome with regards to his lands. The Board must have regard to the land use zoning objective in its deliberations on the appeal.”

48. In his view the re-zoning made the quantum of retail as now proposed all the more unjustifiable. The proposed discount food store area is approximately 1518 m2 which is classed as a supermarket in the Retail Planning Guidelines 2012. The LAP indicated that the “Shop- Supermarket” is not normally permitted. The retail zoning in the LAP was located further east of, and not contiguous with, the application site and towards the centre of the LAP designated area. He further noted that a strategic aim of the LAP is to support the consolidation of commercial activity within the LAP area around a district centre in which a high-quality commercial core is established. Such strategy and zoning appeared to him to be reasonable; and he expressed the view that the planning proposal was contrary to that strategy and conflicts with the land use zoning objective. Further, the quantum of retail and commercial development proposed on land intended for new residential development was problematic; a problem which is further compounded by the fact that only six residential units were proposed for the site whose primary land use is new residential. There were 16 residential units proposed in the 2015 application, which was refused. He therefore recommended refusal on the ground that it conflicted with the strategic aim and materially contravened the LAP zoning objective.

49. Noting that the Board had cited the retail strategy for County Roscommon 2014 in its 2014 and 2015 decisions and further that the Board had raised concerns about the negative impact of the proposed development on the vitality and viability of Athlone town centre, the inspector expressed the opinion that the applicant had not addressed those concerns either in the application to the planning authority or in the grounds of appeal to the Board. In his view, the same county retail strategy and ministerial guidelines applied, and the applicant had failed to justify the quantum of retail floor space being proposed, there being no Retail Impact Assessment submitted with the application.

50. Mr. Rabbette commented that this was further compounded by the fact that only six residential units were being proposed on a site which primary land use objective was to facilitate new residential development. There were sixteen residential units proposed for the site under the planning permission which was refused in 2015 (15/209). He recommended refusal of the proposed development on the grounds that it conflicted with the strategic aim and materially contravened the recently adopted LAP land use zoning objective for the site.

51. With regard to the retail impact of the proposed development, he concluded: -

“I am of the opinion that the Board’s concerns as raised in Reason 1 of 14/115 and Reason 1 of 15/209 relating to retail impacts still pertain.”

In both previous decisions the Board had raised specific concerns regarding the overall quantum of retail proposed in the context of vacancy rates that currently exist in the Monksland area. The Board had cited the retail strategy for County Roscommon 2014, in both refusals, and had raised concerns about the negative impact the proposed development would have on the vitality and viability of Athlone Town Centre. He reminded the Board that it had also held that the proposed development would be contrary to the Retail Planning Guidelines for Planning Authorities. He continued as follows at para. 7.12 of this report: -

“I am of the opinion that the applicant has not addressed these concerns, either in the application to the Planning Authority in the first instance or the grounds of appeal to the Board. The same county Retail Strategy still applies as does the Ministerial Guidelines. The applicant has failed to justify the quantum of retail floor space being proposed. There was no Retail Impact Assessment submitted with the application. The Planning Authority in its refusal decision on the current application, under Reason 2 again cited: The Retail Strategy for County Roscommon; the quantum of retail proposed; the negative impact on Athlone Town Centre, and the Ministerial Guidelines, yet no retail impact assessment accompanied the appeal.”

52. Mr. Rabbette observed that there was no evidence on file that the vacancy rates have substantially changed since the Board’s previous refusal (emphasis supplied). He noted that the only material change which had taken place in a planning context since the previous decisions were made was the change of the site’s land use zoning objective which made a clear justification for the quantum of retail floor space all the more imperative. He also referred to observations which had been submitted by the River Village Traders which cited research from CBRE indicating that Athlone saw the number of vacancies on its high streets increase to 18.2% in the first quarter of 2016, the highest rate of the urban centres listed.

53. The inspector considered that there are two key actions listed in the retail strategy for County Roscommon in relation to the area in question. The first seeks to ensure that retail proposals do not undermine or adversely impact on the key function of Athlone town to serve as the primary regional retail centre. The second applies controls on new build proposals for retail developments where vacant premises, which could readily serve the proposal, have already been built. He noted the amount of retail floor space that remained vacant or underdeveloped. Given the key actions listed in the retail strategy, the floor space already granted and the on-going vacancy rates in the area, he was of the view that the quantum of retail floor space as proposed was unjustifiable.

54. Mr. Rabbette also referred to Policy 87 of the LAP which sought to implement the findings and recommendations of the Retail Strategy for County Roscommon and to assess all retail proposals against the criteria and recommendations set down in the retail planning guidelines of 2012. Policy number 84 of the LAP sought to ensure that retail and services outlets were located within the identified district centre and local centres. The site, the subject matter of the application, was neither a district centre nor a local centre.

Objective 84 seeks to facilitate and encourage the appropriate provision of retail facilities in the LAP area, particularly focused in the areas zoned as district and local centres. He continued: - “The development of the type and scale proposed is not supported by these policies and objectives of the LAP relating to retail and commercial development at this location, on the contrary, it would conflict with these policies and objectives. The need to protect the viability and vitality of Athlone Town Centre is acknowledged in the Roscommon [County Development Plan] 2014 – 2020.”

He stated at paragraph 7.14: -

“The [County Development Plan] indicates that retail growth is to be directed to neighbourhood/district centres and is to serve the needs of local communities and it must be demonstrated that such development will not undermine the viability and vitality of retailing in the town centre.”

55. Having regard to all of these factors, he recommended a refusal for reasons similar to those which had been expressed by the Local Authority, and also by the Board in its two previous decisions. He also recommended that in the refusal reference be made to the new land use zoning objective in addition to the County Retail Strategy.

56. Mr. Rabbette then proceeded to deal with considerations relating to site layout. Surface car parking still dominated the site layout, arguably even more so than in the previously proposed, yet refused schemes. A stronger “urban edge” was required and the site would benefit from consolidation: -

“Building blocks dropped into a sea of surface car parking and unusable open space do little to enhance the urban integrity of the area. As proposed, surface car parking is the dominant element, both physically and visually, on the site, this is contrary to the proper planning and sustainable development of the area…I would recommend refusal in relation to the site layout…”

57. No appropriate assessment issues arose.

58. His recommendation to refuse permission was adopted by the Board. The Board’s stated reasons reflect those expressed by the Inspector.

The Applicant’s pleadings and submissions

59. There is somewhat of an overlap between the pleadings and the submission and it is therefore proposed to consider them together.

60. The applicant alleges that the respondent’s decision was irrational, that the Board failed to have proper regard for the need for a district centre in this location, that it failed to have proper regard for the historical zoning of the site for a District centre and that it failed to have regard to the alleged inherent conflict within the zoning objectives of the locality in the LAP on the one hand, and the Development Plan on the other.

61. The applicant pleads at para. 4 of the statement of grounds that the re-zoning of the site as residential, and the moving of the zoning to an adjoining area to what is described as a neighbouring quarry, as unreasonable. It is specifically pleaded that by reason of the refusal of permission by the notice party, on the grounds that the application constituted a material contravention of the zoning objective, it was incumbent on the respondent to have had specific regard for the provisions of s.37(2) of the Act and the specific matters outlined in s. 37(2)(b)(i)-(iv) thereof. This was not considered by the Board or its inspector and therefore was not taken into account. It is argued that if the Board was satisfied that the development objective for the development is justified, it ought to have considered its jurisdiction to grant permission pursuant to s.37(2) of the Act, notwithstanding the change in zoning.

62. It is a fundamental part of the applicant’s claim that having requested the Board to consider exercising its jurisdiction under s.37(2) it failed to do so in breach of fair procedures and natural and constitutional justice. The provisions of this section have been the subject of much discussion as to their terms and application and in particular in the context of the applicant’s claim that the Board acted unlawfully in failing to take into account the exercise of its discretion under that section, notwithstanding that there may have been a material contravention of the development plan, or the LAP, and despite having been requested to do so.

63. The court notes that while at para. 6 of his report, where the inspector lists the grounds of appeal, the request by Mr. Kenny that the Board should exercise its discretion under s.

37 is recorded. However, no further reference is made to such discretion and whether it ought to be exercised either in that report or in the Board’s decision.

64. It is alleged that an analysis of the planning history of the site and the zoning objectives are riddled with contradictions and uncertainty and that the respondent had not properly considered such conflicts or properly address them. First, the current and previous LAP made provision for the development of a district centre to service the local area. The LAP includes a specific strategic aim to support the consolidation of commercial activity around the development of a district centre but notwithstanding same and the fact that the site was zoned for such purpose, the previous applications were refused. This was primarily due to the fact that there were vacant retail units in the vicinity of the proposed development.

65. It is also alleged that the zoning objective providing for a new district centre on an immediately proximate site in the same general location, which cannot be reasonably reconciled with the Board’s previous refusal of permission for such development in the area. Similar reasons have now been given for the refusal of planning permission as had been given in earlier refusals, one of the reasons being the alleged vacancy rates of retail space and an oversupply of retail units together with a reason that the district centre in the current location would have a detrimental impact on the vitality and viability of Athlone town centre.

66. The applicant pleads that, if this is the case, then it is impossible to see how the LAP, which has, as a central strategic aim, the provision of precisely such a district centre, could be considered reasonable.

67. Emphasis is placed in the pleadings and indeed in argument that the applicant has been refused on the basis that his lands are no longer zoned, and that a new site right next door has been zoned for this purpose, zoning and central strategic aim which is considered to be reasonable. Zoning is then applied to lands no further than 30 m away from his site but he is told that the development of a district centre on his lands is not permissible on account of vacancy rates and detrimental impacts on Athlone town centre.

It is contended that it is impossible to understand how the proposed development apparently conflicts with the retail planning guidelines, whereas the zoning objective in the LAP does not. The applicant maintains that there is a disconnect between the description of the LAP’s objectives as being reasonable, but that when an application is made it is refused for reasons that must, by definition apply to any application for permission for a district centre in the location. This means, according to the applicant, that the development objectives and strategic aims cannot actually be achieved and that none of these matters were considered by the Board, resulting in the determination being unreasonable and flying in the face of reason and common sense.

68. With regard to the second reason for refusal, it is pleaded that in any event, this reason is incorrect and that there is not an oversupply of retail units in Monksland. It is alleged that any retail units which might be vacant and available are not suitably zoned, nor have they the benefit of planning permission for the development of a district centre. It is alleged and submitted that the plan itself draws an important distinction between the oversupply of retail space and the need for a district centre - and there is no overlap between the two. Put simply, either “a district centre is required or it is not”. The LAP states that it is required and is central to the development of the locality. However, the Board’s refusal purports to accept the objective and then refuses permission for a reason which is premised on there being no need for a district centre. Whether such retail spaces are filled or not, it is submitted, are irrelevant to the development of a district centre and it is illogical for the Board to require that an unsustainable amount of retail space be filled with different retail before the development of a District centre. In addition, the applicant maintains that the sites owned by him had historically been preferred for the development of a district centre and are more suitable than the new re-zoned lands for this purpose. It is pleaded that the Board has given no consideration to these factors and that the contradictions in the re-zoning are not identified or engaged with by either the inspector or the Board. These are relevant considerations which have not been considered and therefore the decision is unreasonable.

69. It is also contended that the Board failed to take into account or did not give due consideration to the following: -

(1) The fact that the zoning objective for the development is reasonable.

(2) There is not a surfeit of vacant space – and that is why the zoning objective has been retained.

(3) A district centre will cater for local needs as per the retail planning guidelines.

(4) The district centre will not have a detrimental effect on the town centre of Athlone, some 4 km away.

(5) In its submission to the Athlone Boundary Review Committee, the notice party considered the Monksland area as “a settlement in its own right” and not a suburb of Athlone.

(6) The council had expressed concerns that the proliferation of retail warehousing in the Monksland area and envisaged the development of a neighbourhood or district centre to serve a growing locality instead.

70. With regard to the third reason for refusal, the development as it currently stands has been designed to meet the concerns expressed in earlier refusals. The applicant describes this as a technical reason that could have been addressed by way of either further information or condition, or indeed by way of fresh application; but with reasons one and two intact, there was no point in a further application.

71. In terms of the alleged unreasonableness, the applicant’s case is most succinctly put at para. 11 of the statement of grounds and as echoed in counsel’s submissions that it is manifestly unreasonable to state on the one hand that a district centre in this general location is in principle acceptable as a development objective, but, on the other hand, refuse permission for such a development on the ground that it looks like (and meets the definition of) a district centre.

72. Mr. Collins B.L. submits that the zoning objective providing for a new district centre on an immediately proximate site in the same general location cannot be reasonably reconciled with the Board’s previous refusals of permission for the development of a district centre in this location. What he describes as this irrationality, is at the heart of the proceedings.

The reasons for the refusal echo almost word for word the earlier refusal by the Board.

There is an internal contradiction to state that a district centre in the current location would have a detrimental impact on the vitality and viability of Athlone town centre because this undermines the very principle of the development of a district centre in this location at all. He submits that the only reason for the refusal in 2015 was the view that there were significant vacancy rates for retail space in the Monksland area and this has pervaded each reason for refusal of permission since. This is fundamentally flawed because there is no suitable retail space, vacant or otherwise for a district centre in Monksland. Retail space that has been constructed and is unoccupied is warehouse retail space, completely unsuitable for district centre usage. The local retail strategy and relevant plans for the area envisaged economic development of the Monksland area around the district centre, something which has been stated in each iteration of the LAP.

The last plan moved the zoned area for a district centre to a disused quarry and there is no rational basis for rezoning his site in this manner. The other site is 30 m away from the applicant site and is less suitable for the proposed development.

73. This is described as inherently irrational because if this reason for refusal is correct, then it is impossible to see how the LAP, which has as a central strategic aim the provision of precisely such a district centre, could be considered reasonable. It is also submitted that it is impossible to understand how the proposed development apparently conflicts with the retail planning Guidelines whereas the zoning objective apparently does not. All of this leaves the applicant in an invidious position where he has been refused permission on the basis that his lands are no longer zoned and that the new site “next door” has been zoned for this purpose.

74. It is also submitted that the decision fails to have regard to the fact that while a district centre is “not normally permissible” in a residential zoning, it is not impossible; and the Board’s decision fails to have regard for the fact that until recently, the application site itself was zoned for a district centre and was therefore previously considered suitable. No unsuitability has ever since been identified.

75. It is submitted that the second reason for refusal is inconsistent with reason number one, whereas the third reason is a technical one and might have been addressed by way of further information of condition. With regard to the second ground of refusal, it is submitted that there is no oversupply of retail units in the Monksland area. Such retail units as might be available are not suitable, zoned, nor have they the benefit of planning permission for the development of a district centre.

76. It is also submitted that the Board gave no consideration of the fact that the applicant’s lands had historically been preferred for the development of a district centre and that if the respondent was satisfied that the development objective for the development of a district centre was justified, it ought to have considered its jurisdiction under s.37(2), something which it failed to do. Counsel describes as central to the appeal, that the Board was requested, and failed, to consider the exercise of its discretion pursuant to.

32(7) of the Act to grant permission notwithstanding the contravention of the zoning objective in the development plan. There is no evidence that it was considered.

77. With regard to the third reason for refusal, it is submitted that the proposed development had been designed by the applicant’s agent to meet the concerns expressed in earlier refusals and that the incorporated features will necessarily be present in any district centre application.

The Respondent’s case

78. Mr. Valentine B.L., counsel for the respondent, submits that the assessment of whether a proposed development is consistent with the proper planning and sustainable development of the area is a matter of planning judgment and discretion, is within the specialist knowledge and expertise of the Board and is subject to judicial review on very limited grounds. Moreover, it is contended that the task of reconciling policies or objectives which on their face may appear to conflict or be inconsistent, is a matter of planning judgment. The Board is an expert body and due deference must be afforded to it when a challenge is based on irrationality, and the court must observe the high bar for review enunciated in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 as discussed in Meadows v. The Minister for Justice [2010] 2 I.R. 701. It is submitted, therefore, that if the applicant is to succeed in establishing that the respondent’s decision is unreasonable, he must establish that there was no material whatsoever before the Board on which it could reasonably have come to the view which it had. As is apparent from the inspector’s report and the decision of the respondent, it had regard to the applicant’s submissions, the planning history of the site and the zoning history concerning the provision of a district centre in Monksland.

79. It is contended that the applicant’s claim of irrationality is based on a fundamental misunderstanding of the legal effect of zoning within a plan. That an application for permission may be based on plans which are, or may be, consistent with planning zoning does not mandate the grant of permission. An application for planning permission which is consistent with zoning may nevertheless be refused for proper planning and development reasons. Thus, it is argued that the rationality-based challenge grounded on the contention that there is a dissonance between reason number one and reason number two for refusal, misunderstands the legal effect of zoning in a statutory plan.

Any alleged dissonances are in fact a false dichotomy because, contrary to what is submitted on behalf of the applicant, it is not as simple as saying that something is either acceptable in principal or it is not. There is no internal inconsistency in the reasons for refusing. The proposed development is in contravention of the residential zoning objective of the applicant’s lands and in any event, as only an objective it is merely an indication of the type of development that could in principle be considered acceptable. That it is an objective, does not mean that it follows that an application for planning permission for the type of development in question must be granted or that it would necessarily be in compliance with proper planning and sustainable development in any given case.

There is no contradiction in a finding that, although a proposed development is in compliance with the zoning objective for lands, it may nevertheless be contrary to the proper planning and sustainable development of the area. A particular development may be acceptable in principle, therefore, but it may not be desirable in planning terms for a variety of reasons including those based on policy and those based on fact. Applying such principle to the facts of this case, it is argued that while there is a zoning for a district centre in principle it is acceptable, the planning authority and the Board must exercise care in deciding on the application, because the overriding policy is to protect the vitality and viability of the town centre.

The fundamental principle is to consolidate and support existing town centres. It is submitted that this is supported by the contents of the boundary Committee report. It is apparent there from that concerns were expressed about the effect of a variation adding to the extent of a district centre and the effect of any such development on the town centre, which, it is submitted, is a proper planning and development consideration. The Board was alive to this throughout the planning process. Such approach is and was entirely consistent with the Board’s obligations under s.34 (2)(a) of the Act.

80. The respondent also maintains that the thrust of the applicant’s case is that the district centre zoning objective for his lands ought not to have been changed, and that his lands represent a more appropriate location for a district centre zoning than those so zoned under the LAP. The making of development plans and/or LAPs, as a matter of statutory function, is the responsibility of planning authorities and not of the respondent. The respondent is required to have regard to the prevailing development plan and/or the LAP which is in operation when it makes its decision on the planning application. Counsel submits that the applicant is inviting the Board to look behind and/or revisit the zoning objectives adopted by elected members of the Local Authority. He argues that this is not a function of the Board or the court. It is not open to the applicant to challenge the relevant zoning provisions of the LAP or previous planning refusals in these proceedings, as to do so amounts to a collateral attack. Sections 18 to 20 of the Act prescribe a statutory procedure for the making of such plan which involves public consultation. The applicant availed of his statutory entitlement to participate in that process. He did not challenge the plan at the appropriate time. By virtue of the provisions of s. 18(3)(a) of the Act, when considering an application for permission under s.34, the Planning Authority or the Board on appeal, is required to have regard to the LAP or any draft LAP which has been prepared but not yet made under the Act. This is a further matter to those enumerated in s.34 (2)(a) to which the Board is required to have regard in determining a planning application in an appeal before it. Section 19(6) of the Act is also relevant as it rules out any presumption that any land zone in a LAP shall remain so zoned in any subsequent plan. Section 19 provides: -

“There shall be no presumption in law that any land zoned in a particular local area plan shall remain so zoned in any subsequent local area plan.”

81. Therefore, the Board was under a statutory obligation to, and did, have regard to the prevailing LAP in deciding the application before it. Earlier LAPs, it is submitted, have no status. It is suggested that the applicant is also effectively asserting that the respondent ought not to have refused previous applications for planning permission. While the planning history is a relevant consideration for the Board, the respondent maintains that the applicant is not entitled to invite the court to consider the merits of earlier decisions.

It is pleaded further, that it is entirely open to the Board to conclude that the objective for a district centre is reasonable but that as matters currently stand, the existing quantum of vacant units within the relevant area is such that to grant planning permission for further new development would be contrary to the proper planning and sustainable development, and/or would be detrimental to the viability and vitality of Athlone town centre.

82. Counsel submits that this reflects the primacy of the development plan over the LAP but also confirms that the mere adoption of a new development plan or a variation thereof does not automatically result in the cessation of the effectiveness of the LAP. In any event, that is not a consideration which arises in these proceedings as there is no allegation or suggestion that the LAP is contradicted by the county development plan.

83. It is further submitted that the proposed development, with its significant retail element and limited residential offering, is in material contravention of the new residential zoning objectives for the site in the LAP. It is submitted that it is not disputed by the applicant that the proposed development is in material contravention of the LAP and conflicts with the strategic aim of that plan to support the consolidation of commercial activity around the district centre located to the south-east of, and not contiguous with, the site of the proposed development. No argument to the contrary is made and it is submitted that the applicant’s complaints must be viewed in the context of this undisputed finding.

84. The respondent also relies on the fact that the provisions of s.34(6) of the Act, which empowers the Planning Authority to grant permission, in a case where the development would contravene materially the development plan or LAP, is subject to compliance with the requirements of s.34(6)(a), which include advertising and the preparation of a report by the Chief Executive. Further, a resolution of the Local Authority is required.

85. In this case, the notice party, Roscommon County Council in its decision of the 16thAugust, 2016 refused planning permission for the proposed development, inter alia, because it would materially contravene the zoning objective set out in the LAP.

86. Prima facie, ss.37(2)(a) and (b) appear to apply only where the Board proposes to grant permission in material contravention of a development plan, in circumstances where the Planning Authority has refused permission for that reason. Such consideration does not arise given that it is not the intention of the Board to reverse the decision of the Local Authority on this basis. Mr. Valentine B.L. submits that it is clear from the word “may” in the section that the power to grant permission in material contravention is a discretionary one and there is no obligation to do so or even to consider doing so.

87. The respondent pleads that s.37(2) of the Act affords the Board a discretion to grant planning permission, there is no finding by the Board that the proposed development would materially contravene the Roscommon County Development Plan, rather that it would materially contravene the relevant local area plan and relevant Retail Guidelines.

Therefore, the respondent pleads that s.37(2) has no application.

88. It is not entirely certain that the expression “development plan” in the s. 18(2)

encapsulates a “local area plan”. Ultimately, the respondent adopted what might be described as a neutral stance on this issue. In the course of oral submissions, Mr.

Valentine B.L., counsel for the respondent, did not place significant reliance on any potential distinction between a refusal based on a material contravention of a “Development Plan”, which is expressly provided for in s. 37(2), and a material contravention of an “LAP”, which is not expressly referred to in the section. Counsel for the applicant, Mr. Collins B.L. suggests that his position is probably stronger if the section does not apply to an LAP, as the Board is then at large in its considerations.

89. It is the respondent’s contention that the procedure applies only when a planning authority has refused planning permission on the basis of the material contravention of the development plan and that in any event it is a discretionary power. There is no obligation to exercise the power or to even consider doing so. Significant emphasis is placed in this regard on the decision of Irvine J. in Cicol v. An Bord Pleanála [2008] IEHC 146, which will be considered later in this judgment, as authority for the proposition that, as a matter of law, the Board is not required to proceed to consider in its decision the potential applicability of the criteria set out in s.37(2)(b). The respondent also contends that the substance of this contention, namely that the Board ought to have granted planning permission in material contravention of the applicable zoning objective, is to invite the court to enter on the planning merits, something which is inappropriate in an application for judicial review.

Discussion Irrationality and the Exercise of Planning Judgment

90. There is, in truth, little difference between the parties as to the principles applicable when the court is required to consider a challenge based on irrationality. Counsel for the respondent submits, and I accept as a correct summary of the position, that the assessment of whether a particular development is in accordance with proper planning and sustainable development is a matter within the particular competence and expertise of the Board, a specialist body established by statute. Such decision may only be reviewed on the grounds of irrationality, as described in O’Keeffe as accepted in Meadows, where the Supreme Court expressly confirmed that the test in O’Keeffe continues to apply to the decisions of bodies such as the Board. Reliance is placed on dicta of Denham J., as she then was who observed in a case where a decision maker has a special technical skill such as in O’Keeffe v. An Bord Pleanála, the test should be applied strictly. In Alen- Buckley v. An Bord Pleanála & Ors. [2017] IEHC 541, Haughton J. accepted as a correct statement of law the principles outlined by McGovern J. in Navan Co-Ownership v. An Bord Pleanála & Ors [2016] IEHC 181that: -

“Section 37 applies this statutory restriction equally to the respondent when determining a planning appeal. Whether a particular development is in accordance with proper planning and sustainable development is a matter within the particular competence and expertise of the planning authority, or, as the case may be, An Bord Pleanála, a specialist body established by statute. Such an assessment would only be subject to very limited review on the grounds of unreasonableness or irrationality following O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 and Meadows v.

Minister for Justice and Equality [2010] 2 I.R. 201”

Restriction on planning authority and the Board

91. The requirement, and restriction, on the Board, as prescribed by s.34(2) of the Act is to consider the proper planning and sustainable development of the area when making a

decision on a planning application. The Act lays down many factors to which regard must be had in any such determination.

92. The obligation is one to have regard, and therefore the planning authority or the Board on appeal is not strictly bound by a development plan or LAP. The expression, “to have regard to” was considered by Quirke J. in McEvoy v. Meath County Council [2003] 1 I.R.

208 at pp. 223-224 in the context of s. 27 of the Act, which concerns the making or adoption of a development plan and which imposes an obligation on the Authority to have regard to certain matters. Quirke J. found that the duty imposed on the planning authority by s. 27(1) was to inform itself fully of, and give reasonable consideration to, any regional planning guidelines which are in force in the area which are the subject of the development plan come up with a view to accommodating the objectives and policies contained in such guidelines. He stated that while reason and good sense would dictate that it is in the main desirable that planning authorities should, when making and adopting development plans, seek to accommodate the objectives and policies contained in relevant planning guidance, they are not bound to comply with the guidelines and may depart from them for bona fide reasons consistent with the proper planning and development of the area. By analogy, it seems to me that while the Board is not bound by the local area plan, and that while it is free to depart from it, the Board should only depart from it for bona fide reasons which accord with proper planning and development considerations.

The interpretation of the plan and conflicting policies

93. In Tesco Stores Limited v. Dundee City Council [2012] UKSC 13 the Supreme Court of the United Kingdom observed that the proper interpretation of a development plan was a matter for the courts. This was considered by McGovern J. in Navan Co-Ownership v. An Bord Pleanála & Ors. [2016] 9 IEHC 181 at para. 15 where he states it as follows: -

“…Lord Reed added the following about the application of statements of policy, or conflicting policies to a given set of facts: -

'19. That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v. Secretary of State for the Environment [1995]

1 WLR 759, 780 per Lord Hoffmann). Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.'”

Observing that it is a question of law and a matter for the court as to how a plan (in that case, what was known as Zone B1 and “Town Centre”) is to be interpreted, unless such documents read as a whole necessarily indicated some other meaning, it was a task to be approached by applying to those expressions and words their ordinary meaning as it would be understood by members of the public, without legal training, as well as by developers and their agents. McGovern J. reiterated that attempting to construe or interpret a development plan as though it was an Act of the Oireachtas or some piece of subordinate legislation was not what was required.

94. In Tennyson v. Corporation of Dun Laoghaire [1991] 2 I.R. 527 at p. 534, Barr J. had stated that the High Court had exclusive jurisdiction to interpret a development plan, In O’Mahony v. An Bord Pleanála [2015] IEHC 757, however, Humphreys J. observed that this could not be read literally, because in many planning contexts, a planning authority or the Board must interpret the development plan to some degree. In his view the reference to the role of the court by Barr J. must be read as an expression of the view “that the court has ‘ultimate’ rather than ‘exclusive’ jurisdiction to decide what a development plan means”.

95. Importantly, in this context, McGovern J. alluded to what Lord Reed in Tesco Stores Limited v. Dundee City Council had referred to as the development plans being “full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to the other”. He continued at para. 22: -

“…He added that many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of a judgment and that these matters fall within the jurisdiction of planning authorities rather than the courts. The overriding obligation of the Planning Authority and the respondent is to make a decision based on the proper planning and sustainable development of the area having regard to a number of features including the provisions of the development plan.”

96. Further, it may not always be the case that such the matters to which the Board or authority is required to have regard under s.34 are consistent in policy or aim, either internally or when compared and contrasted. This will be for the planning authority to consider. In Navan Co-Ownership McGovern J. referred to William Davis Ltd. v. Secretary of State of Communities and Local Governments [2013] EWHC. 3058 where Lang J.

stated that: -

“The task of reconciling different strands of policy on the facts of a particular case has been entrusted to the planning decision maker. Such planning judgments will only be subject to review by this court on very limited grounds.”

97. This was echoed in Alen-Buckley, by Haughton J.: -

“Reconciling potentially conflicting policy on wind energy strategy and visual impact in the Plan was a matter for the Board to consider, with the benefit of the Inspector's reports, in the context of the facts arising from the proposed development and what would be proper planning and sustainable development in the area.”

There, he observed that: -

“The most that can be said is that the Plan, of which the WES is an integral part, contains potentially conflicting or contradictory objectives or policies when applied to a proposed development. It was entirely appropriate that the Inspector and the Board should seek to reconcile these conflicts in investigating and deciding the appeal.”

98. It seems to me to be correct, as a matter of principle, as counsel for the respondent highlights, that it is important that the court recognise the democratic process which was followed in the adoption of various plans and reports to which detail reference has been made in this judgment. These must include the LAP and the Development Plan. I also believe that counsel is correct that the court acknowledges the multiparty involvement in the creation and adoption of the Retail Guidelines and the preparation of the report of the Athlone Boundary Review Committee.

99. From these considerations, a policy emerged to reduce the number of district centres from three to one. A conscious decision was made by elected representatives as to where the district centre should be.

100. I also accept the respondent’s submission that it does not follow, axiomatically or otherwise, the fact that lands are zoned for a particular development mandates the granting of a particular permission for a development which is within that permitted by the zoning. Thus, it seems to me that even if the applicant’s lands continued to be zoned for the development of a district centre, refusal of permission may nevertheless be lawful if the proposed development is not in accordance with the proper planning and sustainable development of the area.

101. It was stated in O’Mahony Developments Limited, that there is no inherent right to planning permission, even if the proposed development is in accordance with the zoning.

There, the applicant owned a large piece of land which was zoned for residential development. The lands were formally located within the boundary of Glounthaune but were, in the view of the Board, at a remove from the village itself. In 2008, the applicants sought planning permission for a significant housing development on the site.

In 2009, the Minister for the Environment, Heritage and Local Government adopted guidelines on sustainable residential development in urban areas, and an LAP was adopted in 2011 by the Local Authority which included as one of its objectives that no one proposal for residential development should be greater than forty units. The applicant has previously secured planning permission for 248 units. In 2014, the applicant applied for planning permission for a development consisting of 40 units which related to a smaller sub-section or area of the wider landholding and the Planning Authority granted permission. This was appealed to the Board who refused permission on a number of grounds including that the development would be contrary to the Ministerial guidelines and to proper planning, as the site was at a significant remove from, and in an isolated location relative to, Glounthaune Village. A further reason for refusal was that the development was part of a wider scheme of more than forty units and was out of scale with the character and pattern of the village and not in accordance with the LAP; and ministerial guidelines. During his judgment, Humphreys J. stated: -

“For a development to be (sic) proceed, the fundamental considerations I have referred to earlier require there must be a substantive decision on the merits that the development is in accordance with proper planning and sustainable development. One of the primary factors relevant to this is the state of the natural and built environment at the site in question and how the proposed development would affect and fit into that environment. In many cases, the ‘facts on the ground’ will legitimately be of considerably greater importance to a planning authority or the board than what may be more abstract definitions of areas by means of a boundary line on a map.”

He concluded that the determination by the Board that the proposed development was at a significant remove from, and in isolation relative to Glounthaune Village was a finding of fact which was entirely within the jurisdiction of the Board to make. It was a reasonable

decision and there were no arguable, let alone substantial, grounds for questioning the legality of such finding. He continued at para. 23 –

“The fact that the local area plan may have adopted a wider definition of Glounthaune village does not nullify the facts on the ground as they are found by the board.”

Mr. Valentine B.L. places significant emphasis on the importance of the facts on the ground, which were considered by the inspector.

102. Humphreys J. also stated, importantly, that the fact that the development plan includes as an objective the location of new development within the development boundary did not affect this conclusion because: -

“That is in essence a negative objective – that new development should not be generally favoured outside the development boundary. It is not a free-for-all as far as any and all lands within the boundary are concerned. Considerations of where exactly within that boundary it is appropriate to locate a particular development or type of development are still highly pertinent and the board having had regard to such considerations does not give rise to substantial grounds for contending that it has disregarded the plan.”

Later in his judgment he stated: -

“A zoning, either in a development plan or LAP, is merely an indication of the kinds of development that could in principle be considered in the lands so zoned. A residential zoning does not mean that any particular part of the lands can be subject to any particular residential development, or that a large multi-unit development is necessarily acceptable in any part of an area of land zoned residential. There is no contradiction between a residential zoning attached to lands and the refusal of a permission for residential development on such lands having regard to the particular characteristics of the proposed development and its precise site, and to all the circumstances of the case.”

Humphreys J. thus, stated, that a particular zoning does not give a developer an entitlement to carry out any particular development and the fact that a particular type of development might be permitted in principle with a particular zoning does not mean that it must be permitted in practice throughout the land so zoned.

103. Mr. Valentine B.L. submits that this has particular relevance to this case thus, the thrust of this submission is that even if the lands were zoned for a district centre, the applicant can have no entitlement simply by virtue of that fact to carry out any particular development which may be consistent with that objective. Counsel submits that the assessment of whether a proposed development is consistent with proper planning and sustainable development is a much more nuanced exercise of planning judgment and discretion than that suggested by the applicant in his statement of grounds that “either a district centre is required or it is not”.

104. It is also submitted that there was clearly material upon which the Board could reasonably conclude that the overall quantum of retail proposed would not be justified at this time or at this location considering the vacancy rates that existed within the Monksland area; and that the quantum of retail use proposed would have a detrimental impact on the vitality and viability of Athlone town centre. Mr. Valentine B.L. submits that that is in effect an exercise of the Board’s planning judgment and that there was more than ample evidence of this which may be gleaned from a decision of the notice party to refuse the permission, the contents of the County Development Plan and what relevant provisions and information on vacancy rates contained in the Retail Strategy for County Roscommon and the Department of Environment’s Guidelines for Planning Authorities Retail Planning, 2012. These were all referred to in the inspector’s report.

Decision

105. I must accept that whether a development is or is not in accordance with the proper planning and sustainable development of the area, is fundamentally a matter of planning judgment and where a challenge is made the O’Keeffe principle applies.

106. I also accept that the complaints of the applicant with regard to the zoning of his property are largely based on his dissatisfaction with the LAP. While the Board has a role to play in the interpretation of the plan, it has no function in its formulation or creation. This is a matter which, in my view, was correctly identified by the inspector in his report, when he considered the question of LAP compliance and land zoning in the area.

107. The applicant maintains that the decision of the Board is irrational. One of the reasons why this is claimed is that he contends that there is a tension, inconsistency or dissonance between the first two reasons for refusal.

108. In the first reason for refusal, the Board refers to strategic aim of the LAP to support the consolidation of commercial activity within the plan area around a district centre, which is located south-east of the application site. The sites are described as not being contiguous.

The Board also considered the land use zoning objective for the application site. That zoning is ‘new residential’. Both the aim and the land use zoning objective were considered to be reasonable. The Board then decided that, having regard to the quantum of retail and commercial uses proposed (including a discount food store/supermarket of a stated area of 1519 m², which is not normally permitted on lands zoned new residential)

and also having regard to the limited number of residential units being proposed, the proposed development would conflict with the strategic aim of the plan and materially contravene the land use zoning objective of the site. Therefore, they concluded that the development would be contrary to the proper planning and sustainable development of the area.

109. In arriving at this decision, the Board took into account the extent of the proposed development, the zoning and the strategic aim of the LAP. It seems to me that the Board was entitled, if not bound, to have regard to these factors when arriving at this decision.

110. Further, it seems to me that in taking into account the land-use zoning objective, the strategic aim and the nature and extent of the retail and commercial uses proposed, it was engaged in the exercise of planning judgement. Given the very extensive information which was before the Board including the detailed report from the inspector and the submissions of the parties, I could not conclude, in accordance with the principles in O’Keeffe that it did not have before it, material upon which to arrive at that conclusion or that that conclusion was otherwise irrational.

111. The second reason relates to the retail strategy for the County and again the Board considered the land zoning objective for the site in the LAP in this context. The Board took the view that the overall quantum of retail proposed would not be justified at this time or at this location, considering the vacancy rates that exist within the area of the plan. I do not propose to restate all of the information which was contained in the inspector’s report and which was before the Board. The inspector referred to the planning history, the County development plan, the LAP, the retail strategy for the county, the observations of the applicant and the River Village Traders. He also referred to the retail planning guidelines and to the Committee report. All of this information was before the Board, the detail of which has been addressed earlier in this judgment. It is also evident from the Board’s direction that it had before it the submissions which were on file. Further, it had regard to the level of permitted retail floor space in the area not currently operational as outlined in the Retail Strategy. It also considered that the quantum of retail use proposed would have a detrimental impact on the vitality and viability of Athlone town centre and therefore would be contrary to the planning guidelines and to the proper planning and sustainable development of the area. It is clear from the inspector’s report that consideration was given to ‘retail strategy’ upon which he expressed an opinion. He noted that the applicant had not addressed the concerns of earlier refusals which related to the retail strategy for the county and that no retail impact assessment was submitted with the application. The inspector reported that there was no evidence on file that the vacancy rates had substantially changed since the previous refusals, the only material change being rezoning of the land which made a clear justification for the quantum of retail floor space all the more imperative, in the inspector’s view. The inspector also referred to a submission from the River Village Traders dealing with vacancies on the high streets of Athlone. The Board considered that the overall quantum of retail proposed would not be justified at this time or at this location. Again, it is difficult to conclude that the Board did not have material before it upon which it might arrive at this decision.

112. With regard to the suggested dissonance between the above reasons for refusal I am unable to accept the applicant's contention in this regard. It seems clear to me that the fact that lands are zoned for a particular purpose, or perhaps not zoned, does not necessarily mean that an application for planning permission ought to be either granted or refused. In all of the circumstances, I accept counsel for the respondent’s submission that there is no necessary dissonance between reason number one and reason number two. In my view, it was open to the Board to conclude that given the nature and extent of the proposed development, and the other factors to which it referred and had regard, it had material before it on upon which to base its conclusion that the proposed development is not in accordance with proper planning and development considerations.

113. I am therefore not satisfied that the Board’s decision, which for the most part, it seems to me, involve an exercise in planning judgment and a consideration of the various policies and strategies and duly adopted plans, both County development plan and LAP was irrational or that there was no material before the Board upon to support its conclusion and reasons for its decision.

Was the Board bound to consider exercising its discretion under s.37(2)(a) of the Act?

114. In Cicol, Irvine J. addressed the issue of whether the Board is obliged to consider whether to grant a permission even if it is of the view that the proposed development materially contravenes the development plan. On the particular facts of that case she concluded that the applicant was estopped from making such case. The applicant had no locus standi to raise the complaint having regard to the bases upon which it approached the appeal before the Board. Not alone had it not requested the Board to consider the application of s. 37 but no material was placed before the Board which might have justified it in proceeding to consider making such a decision. More importantly, from the respondent’s perspective, she stated that the use of the word “may” in s. 37(2)(a): -

“…lends little support to the applicant's assertion that the Board, having considered the proposed development in material contravention of the Development Plan, was obliged to proceed to consider whether there were any reasons upon which it might seek to grant planning permission for the development either in whole or in part.”

Irvine J. considered that the applicant’s submission was entirely at odds with the tenor of the Act whereby the legislature had sought to circumscribe “in many ways” development in contravention of a relevant development plan. Having referred to a number of the provisions of the Act, including ss. 178 and 34(6)(a) as evidence of such curtailment, Irvine J. observed that certain provisions require engagement in a consultative process before the exercise of a discretion under those sections. She concluded that on appeal from a refusal due because of a material contravention of the development plan, the Board can only grant such permission in the very limited circumstances set out in s.

37(2). She also concluded that it could not be inferred from ss. 34 and 37 that, having rejected the applicant's contention that the development was not in contravention of the development plan, it was mandated thereafter, of its own motion, to consider whether it should grant planning permission on the basis of other considerations which were not ventilated by the applicant in the course of the appeal. She stated: -

“I believe that to conclude that the Board should have done so would be to fly in the face of the legislature's obvious desire to curtail development in contravention of a Development Plan absent the type of safeguards and consultative process provided for in s. 34(6)(a) of the Act of 2000.” (emphasis added)

115. Irvine J. considered that the Board, having decided that the proposed development was in contravention of the development plan, ought to have very significant reasons to justify granting planning permission to the applicant and “all interested parties would have been entitled to be on notice of the Board’s considerations in this regard.” She stressed the importance of the consultative process and observed that had the Board proceeded to grant a formal planning permission “such decision would have been made in circumstances where that decision would have been open to challenge by third party objectors and/or the local authority as having been made without due regard to fair procedures.”

116. The facts of Cicol are not on all fours with those in this case. There, the Board was not requested to consider the granting of planning permission even if it came to the

conclusion that the proposed development constituted a material contravention of the development plan. Here, the applicant requested the Board to consider exercising its jurisdiction under s. 37(2). Perhaps another distinguishing feature is that the applicant in Cicol submitted that the proposed development did not contravene the development plan and thus the Board did not have any significant facts which it might be permitted to consider.

117. Thus, while it may be said that Cicol ought to be distinguished, it seems clear that even had such a jurisdiction arisen, the Board would have to be satisfied that very significant reasons existed to justify the granting of the planning permission; and more importantly, all interested parties would have been entitled to be on notice that it was considering the exercise of its discretion.

118. The principal complaint of the applicant, however, is that, despite request, there is no evidence that the Board considered the exercise of such jurisdiction, and if it did, this is not evident from its stated reasons.

119. It seems to me that this gives rise to the issue of whether the request that the Board exercise a discretionary power imposes a legal obligation to consider the request and, if it chooses not to exercise such discretionary power, to provide reasons for not so doing.

120. It is important to recall that the material which was before the Board included the submissions on file and the inspector’s report. The inspector summarised the grounds of appeal which included the applicant’s request that it exercise its discretion under s.37(2)

of the Act. Thus, it is clear that the applicant’s request that the Board exercise its discretion was before it, but what the Board failed to do was to expressly state in its

decision or in it reasons or conclusion that it had considered the request and that it decided not to exercise its powers under s.37(2) and to expressly give reasons for that

decision.

121. As a matter of principle, I accept counsel for the respondent’s submission that the requirements of s.37 apply only when the Board is considering a departure from the development plan; or, if applicable, the LAP. Section 37(2) is expressed in the negative – it constitutes a limitation on the granting of permission which is in material contravention of the relevant plan. In any event it is a discretionary power which must be exercised sparingly.

122. It is beyond argument that s.37(2) applies to a County Development Plan. What is not so clear is whether it applies to a development which is in material contravention of the Local Area Plan. Given the approach adopted by the respondent it is not necessary for the court to decide this issue. The respondent has effectively accepted, at least for the purposes of this case, that s. 37(2) may very well apply to a development which is in material contravention of an LAP; the essence of the argument being that it is immaterial because the Board was not in any event minded to grant a planning permission which was in material contravention of that plan.

123. It seems to me that the power under s.37(2) cannot be considered in isolation. The overriding principle which governs the planning authority, and Board on appeal, is that which is set out in s.34. The manner in which that section is worded is not without significance. Section 34 expressly provides that the planning authority, or the Board on appeal, in arriving at a decision as to whether planning permission ought to be granted is restricted to considering the proper planning and sustainable development of the area.

There are various factors which it is obliged to have regard to, but in my view, it would be inconsistent with the framework of the Act to impose on the Board an obligation to consider the exercise of discretion under s.37(2), where it has formed the view that the proposed development, as here, is not in accordance with the proper planning and development of the area. This is altogether a separate issue from whether, although in material contravention of the relevant plan, the Board is nevertheless of the view that the proposed development accords with the proper planning and sustainable development of the area. This is the overriding consideration.

124. I must therefore conclude that the potential exercise of the power under s.37(2) does not arise unless the Board is of the view that, taking everything into consideration, the proposed development, albeit constituting a material breach of a development plan or LAP, nevertheless is in accordance with the proper planning and development of the area.

A fortiori the potential exercise of a power under s. 37(2) does not arise where, as here, the planning authority has decided that the proposed development is not in accordance with the proper planning and sustainable development of the area. This is the overriding consideration, and in this case, such is clear from the reasons which the Board gave for the refusal.

125. Once that decision has been made, it appears to me that the power or jurisdiction under s.37 does not arise. Further, in my view, a request to consider that jurisdiction to exercise such power cannot translate into a legal obligation to consider that which does not arise in the first place. It must follow that a failure to provide reasons for not exercising that jurisdiction does not give rise to a cause of action on such interpretation of the provisions of the Act that the exercise of that jurisdiction could not arise, and would be in excess of the powers of the respondent to purport to do so in the circumstances. While it may have been helpful, or indeed a matter of courtesy, for the Board to state why it did not consider exercising a power which it did not enjoy, in view of its conclusions regarding proper planning and development considerations, I do not believe that the failure to do so is unlawful or actionable. In this regard, I accept counsel for the respondent’s submission that in those circumstances it would be unduly formulistic to impose such an obligation on the Board to insert a line in the reasons to state what I believe the legal position to be.

126. In my view, this is consistent with the rationale discussed in O’Mahony Developments Limited, where Humphreys J. observed that, as a matter of fundamental principle, there can be no general inherent legal right to carry out any particular development.

127. With regard to the third ground or reason for refusal, I am also satisfied that the Board’s views on the merits of the design of the applicant’s proposed development is quintessentially a matter of planning judgment and that the applicant has failed to advance any basis on which it could be said that the Board’s view was unreasonable or irrational in the O’Keeffe sense. In my view, there was adequate material before the Board upon which it could come to the conclusion it did and no basis has been established as to why this court ought to interfere with that conclusion.

128. Therefore, in all the circumstances I am not satisfied that the applicant has discharged the burden of proof which lies on him on this application and I must refuse the reliefs sought.